Theorizing Constitutional Change in East Asia

Abstract

How do constitutions change in response to social problems? This Article explores why constitutions in three East Asian countries, namely Japan, Indonesia, and China, changed rapidly during times of social crisis and then incrementally evolved during periods of stability. It looks for explanations in historical institutionalism, a novel theory developed to understand the factors that give rise to the creation, persistence, and change of political institutions, such as constitutions. Constitutional change in these East Asian countries is explored by examining constitutionally defined eminent domain powers that enable governments to compulsorily acquire land in the public interest. The Article aims to understand whether fundamental constitutional change only occurs through crisis or whether it can also take place gradually by layering new ideational components onto old programmatic ideas, repurposing them to new uses. Drawing on case studies about eminent domain in Japan, Indonesia and China, the Article concludes that although crisis can trigger fundamental change in any political system, incremental reforms are more likely to promote fundamental change where governments are accountable to the public through constitutional courts and/or democratic elections